On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-08-3653.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Baxter.
We find no merit in defendant's arguments in this appeal of an order denying a petition for post-conviction relief (PCR), and affirm.
At the conclusion of a trial in 1999, defendant was convicted of first-degree carjacking, N.J.S.A. 2C:15-2, and first-degree robbery, N.J.S.A. 2C:15-1, and was later sentenced to concurrent twenty-year prison terms, with a five-year parole ineligibility period on the carjacking conviction. In his direct appeal, defendant argued: (1) there was insufficient evidence to support the robbery conviction; (2) the judge erred in denying his motion for acquittal of carjacking; (3) identification evidence should have been excluded; (4) the testimony of a witness that he was afraid to identify defendant was prejudicial and denied him a fair trial; and (5) the judge's instructions regarding that witness's inconsistent statements invaded the jury's exclusive province. We affirmed, State v. Jacobs,*fn1 No. A-1230-99 (App. Div. June 29, 2001), and the Supreme Court denied certification, 170 N.J. 208 (2001).
Defendant filed a pro se PCR petition on August 7, 2006. Counsel was appointed and filed a brief supporting the PCR petition. The matter was scheduled for oral argument on December 10, 2007. At that time, defendant was present, as was the assistant prosecutor, but defendant's PCR attorney did not appear.*fn2 The judge stated on the record that defendant's PCR attorney had been contacted and it was learned that he was unavailable. The judge advised the parties that, as a result, he would decide the matter based on the written submissions and, in fairness to defendant, would not permit the prosecutor to orally argue the matter. The judge later denied the PCR petition for the reasons set forth in a written opinion dated January 7, 2008.
On August 24, 2010, we granted defendant's motion for leave to file a notice of appeal out of time of the January 7, 2008 order. In this appeal, defendant argues:
I. THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL FROM HIS PCR COUNSEL. THE TRIAL COURT'S DENIAL OF HIS [PCR PETITION] SHOULD BE REVERSED AND REMANDED TO THE TRIAL COURT FOR FURTHER PROCEEDINGS. THE COURT COMMITTED ERROR BY PROCEEDING WITH THE HEARING WITHOUT THE APPELLANT'S COUNSEL BEING PRESENT.
II. THE COURT COMMITTED ERROR BY DENYING THE APPELLANT'S PETITION WITHOUT GRANTING AN EVIDENTIARY HEARING ON HIS CLAIM THAT COUNSEL WAS INEFFECTIVE FOR NOT CHALLENGING A POTENTIAL JUROR FOR CAUSE, ON HIS CLAIM THAT HIS TRIAL COUNSEL DID NOT FULLY INVESTIGATE OR PREPARE THE CASE FOR TRIAL, AND ON HIS CLAIM THAT HIS APPELLATE COUNSEL WAS INEFFECTIVE.
A. Trial counsel was ineffective for not asking the court to inquire further into the prospective juror's positive response that she knew either the prosecutor or a person on the witness list.
B. Trial counsel was ineffective for not fully investigating the case and preparing for the trial.
C. Appellate counsel was ineffective for not raising the Appellant's argument of ineffective assistance of trial counsel on direct appeal.
III. THE TRIAL COURT COMMITTED ERROR BY NOT GRANTING THE APPELLANT'S PETITION OR IN THE ALTERNATIVE GRANTING THE APPELLANT AN EVIDENTIARY HEARING DUE TO THE CUMULATIVE EFFECT OF THE TRIAL AND ...